environmental conflict management. an environmental policy i

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402/96 - 19 e PVI Division 402Environmental protection, Conservationof Natural Resources, Dissemination ofAppropriate Technologies (GATE)

Environmental ConflictManagement

An environmental policy instrument indeveloping countries


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Division 402Environmental Protection, Conservationof Natural Resources, Dissemination ofAppropriate Technologies (GATE)

402/96 - 19 e PVI

Environmental ConflictManagement

An environmental policy instrument indeveloping countries

Eschborn 1996


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Publisher:Deutsche Gesellschaft frTechnische Zusammenarbeit (GTZ) GmbHPO Box 5180, 65726 Eschborn

Division 402, Environmental Protection,

Conservation of Natural Resources,Dissemination of Appropriate Technologies (GATE)

Pilot Project Institutional Development in EnvironmentWachsbleiche 1, 53111 BonnTel.: (+49) 0228 98533-0 / Fax: (+49) 0228 98570-18E-Mail: [email protected]

Author: W. Hamacher

Responsible: W. Hamacher, S. Paulus, B. Winkler

Layout: I. Borucki


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2TGHCEG

Since the beginning of the 1980s, as part of development cooperation (DC), the FederalRepublic of Germany has stepped up support to partner organizations in developingcountries for solving environmental problems. During this time it has become clearer thatbecause of these problems complexity, their multi-sectoral character and the number ofactors involved - all with differing interests - the institutional framework would have to bemore carefully examined. Thus for several years GTZ has increased capacity-buildingefforts in the environmental sector, both aimed at developing institutional structures andan effective range of instruments for environmental policy. Not only at the United NationsConference for Environment and Development (UNCED 1992) but also within theframework of the OECD Development Assistance Committee, the significance ofenvironmental policy was emphasized; and support was called for to assist developingcountries in consolidating institutional structures and local capacities for solvingenvironmental problems. To this may be added the development and application of

alternative methods for resolving environmental disputes.

The present contribution offers an overview of various conflict management (CM)procedures and their application within the environmental sector. These procedures havethe common aim of attempting to solve environmental conflicts before they turn into legaldisputes. They produce alternative solutions acceptable to all parties to the conflict -sometimes by means of a neutral third party. The positive experience of industrializedcountries lends credence to the assumption that these "Alternative Dispute Resolution"(ADR) techniques may also be relevant in developing countries. In the process, novellegal and administrative regulations are suggested, which when applied and possiblyinstitutionalized, may serve to supplement the existing range of instruments. Thiscontribution is offered primarily to professionals who are planning or implementing

environmentally-related projects in DC; it is intended to stimulate the greater integration ofCM instruments into such projects as part of the overall environmental-policy range ofinstruments. We also hope to interest professionals and decision-makers from developingcountries who would like an overview of cooperation possibilities in this field and wouldlike to familiarize themselves with the current state of discussion in German DCinstitutions. The focus of this contribution is on technical cooperation (TC).

The considerations presented here constitute one of the GTZ key activity areas in thescope of the supra-regional pilot project "Institutional Development in Environment" whichis being implemented by the GTZ under a commission from the German FederalGovernment with the aim of increasing the integration of participative and process-oriented elements into the promotion of environmental institutions. The present

contribution is based on the results of an international workshop which GTZ held jointlywith the World Bank and the Swiss Academy of the Environment in November 1995, inaddition to training courses in developing countries and related literature. We would like totake this opportunity to thank all participants most warmly.

Bonn/Eschborn, February 1996

Dr. Hans Peter Schipulle Dr. Wolfgang MorbachBundesministerium fr WirtschaftlicheZusammenarbeitund Entwicklung(BMZ) (GermanFederal Ministry for Economic Cooperation andDevelopment)

Division 224 (Environment, ResourceProtection and Forestry)

Deutsche Gesellschaft fr TechnischeZusammenarbeit, (GTZ) GmbHDivision 402 (Environmental Protection,Conservation of Natural Resources,

Dissemination of Appropriate Technologies)


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II

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Preface ITable of contents IIDiagrams and graphics IIIAbbreviations IVSummary V

1. The significance of alternative conflict management for developmentcooperation

1

2. Conflict management as an integral part of effective environmentalpolicy: experience with conflict management procedures

4

2.1 Current situation in the USA 4

2.2 Varieties of conflict sources 62.3 Advantages of conflict management procedures... 72.4 ...and the conditions they require 82.5 Conflict management procedures 92.6 Building blocks and the course of a conflict management procedure 102.7 Evaluation of conflict management procedures by participants 162.8 The content of negotiated settlements 192.9 Qualifications of a mediator 20

3. Environmental conflict management and development cooperation 233.1 The context 23

3.2 Institutional framework 253.3 Intercultural exchange 263.4 Operational planning 28

4. Approaches for development cooperation 304.1 Principles of cooperation 304.2 Partners in cooperation 314.3 Phases and key activity areas 324.4 Cooperation among development cooperation institutions 36

5. Concluding remarks 38

Selected literature 39

Annexes

1. An example of procedural rules of order 12. An example of correcting informational imbalances 33. Conflict management procedures 44. Formulation of issues in conflict analysis 95. Varieties of advisory interventions 10

Division 402 publications to date 11


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&KCITCOUCPFITCRJKEU

Box 1 Definition of conflict management

Box 2 Varieties of conflict sources

Box 3 The continuum of conflict management

Box 4 Procedural steps in mediation

Box 5 Conducting interest-based negotiations

Box 6 Negotiation package

Box 7 Legal obligations of participants to the negotiated settlement

Box 8 What does "power" mean?

Box 9 Mediator typology

Box 10 Conflict management in Indonesia

Box 11 Socio-cultural framework conditions in Indonesia

Box 12 Communication policy in Benin

Box 13 Institutionalization components

Box 14 Preparatory phase

Box 15 Planning phase

Box 16 Implementation phase


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IV

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ADR Alternative dispute resolution

BMZ Bundesministerium fr Wirtschaftliche Zusammenarbeitund Entwicklung(German Federal Ministry for Economic Cooperation and Development)

CIM Centrum fr internationale Migration und Entwicklung

CM Conflict management

DAAD Deutscher Akademischer Austauschdienst(German Academic Exchange

Service)

DC development cooperation

DSE Deutsche Stiftung fr internationale Entwicklung(German Foundation forInternational Development)

FC financial cooperation

GTZ Deutsche Gesellschaft fr Technische Zusammenarbeit,GmbH

IDE Institutional development in environment

NGO non-governmental organization

OECD Organization for Economic Cooperation and Development

TC technical cooperation

UNCED United Nations Conference for Environment and Development

WIP waste incineration plant


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5WOOCT[

In industrialized countries, parts of the population have come increasingly to resistenvironmentally-relevant activities such as the construction of waste disposal plants. Thisresistance brings on a sort of decision-making crisis in many environmental-policy sectorstoday. The source of such disputes lies in part in the actual substance of the decisions,but it also lies in the decision-making process, which often lacks transparency andconsensus. Without new methods of citizen-participation, alternative dispute resolution(ADR) procedures, and other participatory negotiation methods which permit innovativedevelopment approaches and nurture social acceptance, the transition to sustainabilitythat is so globally called for will hardly be possible.

Since the start of the 1970s in the USA - and later in other countries as well - "alternative"conflict-resolution procedures were developed and applied with considerable success tosupplement traditional decision-making procedures for the resolution of environmental-

policy conflicts. The various procedures aim to bring together all interested but opposingparties to solve problems jointly: to "negotiate" a solution acceptable to all. In this way ithas been possible to produce options that were in both nature and extent beyond thesphere of administrative or judicial decision-making.

The hallmark of these procedures is lack of formality, which allows for optimal adjustmentto the needs of the opposing parties:

First, there are procedures for cooperative decision-makingwhich take place without amediator (third party not involved directly in the dispute).In the case of procedures taking place with third-party support, a third party intervenes toassist the negotiating partners. This assistance may be psychological, procedural, or

substantive in nature:Thus, team-buildingcontributes to the formation of relationships.Or a third party may assist with design and implementation of a (not particularly polarized)negotiating process, as in facilitation. This person may even be a party to the conflict, buts/he must exercise impartiality in regard to the issue being negotiated.Mediation- surely the best-known procedure - is basically a kind of procedural support. Itis used when conflicts are highly polarized and negotiations have reached a stalemate orhave not even begun.Substantive supportmay be provided through Technical Advisory Boards.Decision-by-a-third-partyprocedures are also strongly differentiated. What they share isthat the "negotiation" of the adversaries about agreement is no longer central, but ratherthe unequivocal recommendation or the binding or non-binding (arbitrated) decision.Occasionally, arbitration and mediation may be combined.

Most of the parties involved experience such procedures as positive. Reservations oftencrop up when people (rightly) perceive the procedures as a discredited instrument forprocuring acceptance. The dissolving of mistrust between state and society as well as theexecutives openness to any outcome are therefore important building blocks for success.Although most experience with alternative conflict management procedures in theenvironmental sector has been gathered in industrialized countries, there is much to besaid for applying it in developing countries: institutional weakness, inadequateenvironmental policy, a lack of regulatory legislative instruments, deficiencies inenforcement, unclear lines of responsibility and inefficiency on the part of administrations

and courts all allow negotiated settlements to appear as a true alternative, particularly,too, because consensus-orientation is a tradition in many developing countries and isgenerally applied in the resolution of conflicts in any case. Experience so far withalternative methods of conflict management in various developing countries has also


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shown that there is considerable creative potential for overcoming environmental-policyconflicts.

Development cooperation projects often take place in the charged atmosphere ofenvironmental-policy conflict. Such projects usually depend on the active participation of alarge number of actors, but at the same time they must incorporate the divergent interestsof these same actors. Alternative conflict management procedures are of increasingrelevance to development cooperation. Determining factors in regard to points ofintervention for cooperation in this field are the questions of the requisite frameworkconditions and the acceptance and viability of methods developed and primarily applied inWestern cultures. In this regard, the simple transfer of conflict management theory topractice in developing countries is likely to be counterproductive: mediator-supportednegotiations such as mediation procedures do indeed take place there, but are rarelyuniform in regard to procedures and mediator role. The decisive question is not,therefore, how procedures and methodologies may be directly transferred from onecountry to another, but rather: "What works in a given situation? To what extent maytraditional dispute resolution procedures in developing countries be applied, further

developed, and interfaced with modern procedures in regard to the environmentalsector?"

For development cooperation the challenge is to initiate and see the process through,using traditional, locally-tested methods. At first, pilot efforts may be supported, but in themedium term, institutionalization is the aim. For this, the necessary process-orientedsupport requires flexible and iterative planning. And every imaginable activity involved insuch a process presupposes, of course, a comprehensive understanding of the "conflictculture" of the respective country. An exact analysis of the participant structure and theorganizational landscape is necessary as well, even though the political sensitivity of thetopic and its cultural implications prescribe a solely catalyst role for developmentcooperation. In the long term the application of conflict management procedures goes

beyond the immediate resolution of disputes to a changed participant culture and toincreased "ownership."

Experience so far also shows that such processes develop considerable momentum oftheir own and may possibly require new forms of support. It remains to be seen to whatextent the existing range of technical cooperation instruments may serve a broader andmore appropriate application of such methods in the environmental sector in the long run.


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The public must be viewed as a resource,not as an obstacle

1. The significance of alternative conflict management (CM) for

development cooperation (DC)

Wherever people live together in societies there are disputes. Societies do not differ inthat in some there are disputes and in others not: they differ only in the intensity of conflictand the manner and modalities of dealing with it. The same is true of environment-relateddisputes, so it is not surprising that with the growing significance of environmental andresource protection environmental conflict is on the rise. There are many reasons for this.In developing countries, where the connection between living conditions and the condition

of natural resources is close, the consequences of resource utilization often makethemselves directly felt. In industrial countries the causes often lie in the unequaldistribution of benefits and risks - above all with large development projects - in theperceived threat to the quality of life on all levels, in the difference between the views ofexperts and ordinary people (often heightened by disagreement among the expertsthemselves), and in the problem of dealing with uncertainties and residual risks.

A frequent result is that environmental decisions encounter resistance by those affectedand are, in some cases, even challenged in court. The question arises as to why there isgrowing resistance vis-a-vis state interventions particularly in the environmental field andthus presents a challenge to every political system.

An answer to this question must take two processes of change into account, whichappear in industrial and developing countries with varying emphasis and lapses in time:

r The future-orientation of environmental policy decisionsThe elements of policy have indisputably become more complex. In the face ofgrowing global and regional danger to the environment (catchword: "risk society"), thequestion arises as to whether and to what extent existing structures and decision-making processes ensure that environmentally relevant decisions are in the bestinterests of the entire society with respect to quality of life and survival itself. At theforefront are questions concerning the acceptability of risks, of short- and long-termconsequences of political decisions or the lack of them, and the incorporation of these

interests into the political-administrative system with an accommodation of diverginginterests through concrete decisions.It is precisely in the environmental sector that the discrepancy between societys short-term, here-and-now-oriented perception of time and the necessity of coming to termswith the long-term results of decisions is most acute. Solutions to environmentalproblems must to be complex enough to be effective, and new methods of reachingenvironmental policy decisions will need to be future-oriented.

rThe legitimacy of environmental policy decisionsThe shift of emphasis observable in all societies from the legislative to the executive(and thus to administration) heightens in equal measure the problem of legitimizing(environmental) policy decisions and the problem of their complexity. The more

decisions are made on the administrative level, the less accountability there is, andthus the question of substantive and formal legitimacy remains unanswered: thenecessary process of representing various interests in political decision-making eitherdoes not take place or takes place only to a limited degree.


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This has considerable effects on coming to terms with complex environmentalproblems. In addition to the technical, scientific dimension, these problems have a far-reaching social dimension as well. Information on this social dimension is notautomatically available in advance, but often surfaces only during the decision-makingprocess. Administrative procedures to prepare for and take decisions must attempt todeal with both factual and social complexities. Only altered procedures can make thispossible - procedures that are both transparent and participatory. The quality of adecision - its good sense or the lack of it - thus depends less on the decision actuallytaken than on the reasonableness or correctness of the procedure leading up to it: onlythrough participation correct decisions can become socially equitable as well.

Alternative dispute resolution(ADR) - a process developed chiefly in the USA - serves asan example of the above changes in the decision-making process in regard totransparency, participation and representation of all interested parties as well asconstructive conflict resolution. Their application confirms the two trends in theenvironmental sector described below, which are also detectable (if with some delay) inEurope, but which will in the long term make their appearance world-wide:

From sovereign, unilateral decision-making

to cooperation and consensus

From after-the-fact courting of acceptance

to communication and cooperative conflict resolution

In the USA, new forms of conflict resolution in the environmental sector have beendeveloped and applied since the start of the 1970s. Based on experience in divorce and

separation counseling, in the field of perpetrator-victim compensation, and in job-relatedconfrontations at the workplace, disputes should be resolved through negotiation, ifpossible through consensus among the adversaries. Even though the original motive forfinding new, "alternative" forms of conflict management (CM) may have been theoverburdening of the courts, today they belong in the USA to the established range ofinstruments for resolving disputes in the environmental sector. The reasons for theirincreasing success and application will become clear in this paper through a closerexamination of CM potential.

At the forefront are the following premises:

A consensus solution resulting from dispute resolution has better prospects forimplementation than does a decision which results in winners and losers.

The joint search for solutions strengthens a relation of trust among all concerned andprevents policy strangulation when the state is one of the conflicting parties.

Participation creates competence: citizens see themselves as the subject and not justthe object of policy and administrative decisions.

In contrast to judicial proceedings, all parties may actively influence the form thesolution takes.

In developing countries, where environment and natural resources are becoming adecisive factor in the development process, alternative CM procedures have considerablerelevance in environmental related conflicts. Environmental and resource-utilization

conflicts are becoming more and more significant in development and investmentprojects. These conflicts often hinder the development process - especially when theytouch on the survival of affected groups. The environmental sector of developing


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countries is thus often marked by sharp conflict. In many developing countries,institutional weakness - such as deficient environmental policy, lack of regulatorylegislative instruments, inadequate enforcement, unclear accountability and inefficiency ofadministration and judiciary - compounds the problem.

Many pilot applications of alternative CM procedures in developing countries underlinetheir practical relevance. In many cases it is possible to harness the traditional CMmethods of the respective culture: how and under what circumstances is one of thecentral issues of this paper. The attempts of various developing country governmentshave already reached the point at which the institutionalization of alternative CMprocedures becomes relevant.

From the development-policy point of view, there are also a number of good reasons forpaying more attention to alternative CM procedures: on the one hand, experience with(failed) large projects in developing countries shows that potential conflicts were not

adequately anticipated. 1 On the other hand, the German Federal Governments criteria

for promotion 2and the international debate on "good governance" have lent strength to

discussion about modernizing the state. The key terms are: decentralization,administrative reform, participation, pluralism, emphasis on cooperation, and a new imageof the state as a "service organization." Alternative CM procedures take on a central rolein this regard.

Thus the issue is raised: to what extent should the development and strengthening ofcapacities for environment related conflict-resolution be the subject of developmentcooperation? Considering the status of problems and applications described in somedeveloping countries, it is amazing that alternative CM procedures havent long sincefound ready acceptance within technical cooperation (TC). Indeed, German TC has beenpromoting governmental and non-governmental environmental institutions for more than

ten years, but with focus on technical projects and operational-level measures. However,environmental projects have not only a technical but above all a social component. Bynature they often involve conflict and are complex and marked by a number of divergentinterests.

TC projects in the environmental sector often operate in this atmosphere without theability to react appropriately to it. Alternative CM procedures could offer relief as one of anumber of participative instruments. Consideration of how this issue might become a partof TC gave rise to the present paper, which seeks to define more precisely a possiblefield for cooperation within the CM sector and thereby in particular to reflect the TC rolethat emerges, given the special complexity and sensitivity of the issue.

1 Narmada in India and Arun III in Nepal represent in this case a number of similardevelopment projects.

2 Public participation, market economy and the development orientation ofGovernment activities are above all worthy of mention in this connection.


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consensus problems or disputes over jurisdiction among governmentalinstitutions, where the objective is to reach agreement on the manner of cooperationwithin the environmental sector

Sectoral classification revealed that conflicts predominated in the land-use, naturalresources, water consumption, energy, air quality, and toxic substances sectors. In 42%

of all cases the objective was to reach a joint decision; in 40% it was to draw up jointrecommendations; in 18% to improve communication. For the participants in the CMprocedure, the process itself was as important as achieving a result: How can I influencedecisions? How fair and efficient is the process? The relationship to and communicationwith other participants were considered very important.

In a total of around 80% of the cases it made almost no difference to the result attainedwhether a policy dialogue or a site-specific conflict was concerned.

The rate for implementation of agreements in site-specific conflicts was 80%, in policydialogues, at 40%, considerably less, indicating that implementation is more difficult toachieve in such cases. The reason may be that the officials responsible for

implementation have not participated, or it may be the structural weakness of anadministration dominated by special interests.

The number of cases examined does not, however, allow the conclusion that CMprocedures are the dominant mode of conflict resolution. The forms of CM withoutmediator support still dominate - for example, judicial and administrative decisions.Although no recent figures on developments in the USA are available, the increasingprofessionalization of this sector and the legislative and institutionalization efforts ofrecent years allow to conclude that enormous growth is taking place in this form of conflictresolution.


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2.2 Varieties of conflict sources

The type of conflict source may be of decisive significance for the selection and structureof an appropriate CM procedure and should be taken into consideration in the conflictanalysis (v. Section 2.6.2).This applies to all varieties of conflict and to all levels on which they occur. Theoretically,five varieties of conflict causes may be identified (v. box 2):

Box 2

Varieties of conflict sources

Copyright CDR Associates

rProblems on the relationship leveloccur mostly in the face of differing perceptions,communication problems, stereotypes, prejudices and strong emotions.

rData problemscrop up when information necessary to decision-making is lacking,when people are inaccurately informed, or when the relevance of available data or

their interpretation is subject to debate.

rDivergent interests, perceived or real, often lead to conflict. They occur when bothsides push for satisfaction of their own particular interests.The subject of dispute maybe substantive (money, time, resources), or procedural (how is the conflict to bepresented?) or psychological (perception of trust, fairness, respect). The operatingprinciple for the resolution of this kind of conflict is that a sufficient number of theinterests of all participants in these three areas is considered in resolving the conflict.

rStructural problemsare caused by certain types of relationships between institutionsor individuals. Factors outside of the circle of parties involved in the dispute are often

responsible for the conflict or intensify it, e.g., limited authority, lack of financial andhuman resources, geographical constraints, lack of time, and also organizationalstructures such as inflexible hierarchies.

Relationshipproblems

strong emotions

prejudices/stereotyping

poor or miscommuni-cation

Valuedifferences

Data/informa-tion problems

lack of information different

interpretation

Structural problems

Resources

administrativeprocedures

distribution of

power/authority time, place

Interests

proceduralpsycho-logical

substantive


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rValue differencesemerge in differing systems of values and beliefs. Values lie at theroot of convictions about right and wrong, good and evil, justice and injustice. Differingvalues must not necessarily lead to conflicts, which occur only when differences invalues are not recognized or are asserted to be exclusive: under certain circumstancesthe relative importance of values may undergo a change.

2.3 Advantages of conflict management procedures...

The chances CM procedures have for success in general have already been outlined inSection 1. While the resolution of particular disputes may not involve every one of thebenefits listed below, many of them are often present.

rThe voluntary nature of the process: Participants who decide in favor of a CMprocedure do so because they are convinced that agreements reached in this way willbe better than, for example, judicial decisions.

rSpeeding up the process: Since CM procedures are less formal than judicialproceedings, the participants themselves may determine their nature, prevent delays,and speed up the entire process. When time, money and the postponement ofdecisions entail major costs, solutions based on CM procedures are a good alternative.

rCreative and appropriate solutions: CM procedures offer participating parties thepossibility of reaching tailor-made agreements that are more likely to serve theircommon interests than are those imposed by a third party. They allow room forpractical solutions that may be accepted on all sides. CM procedures also allow forgreater flexibility amid the range of possible solutions, may focus on the root causes ofconflict, and are not limited in the way judicial proceedings are.

rThe creation of better relationships among the participants: CM procedures thatlead to results accepted by all are much more likely to improve present and futureworking relationships among participants than win/lose procedures such as litigation.

rHigher rate of compliance: Participants who have reached agreement together aremuch more likely to stick to their agreements than are those who are to acceptdecisions imposed by a third-party decision maker. Thus CM procedures maycontribute to the avoidance of costly re-litigation.

rReduction of risk in planning: From the point of view of administration and projectcontractors, the timely use of CM reduces the risk of failure at a later point in time by

taking the needs and interests of all actors into consideration right from the planningstage.

rSavings: CM procedures are in general less expensive than are court proceedings.The costs are essentially connected with time, and neutral third parties (mediators)cost on the average less than do lawyers.In addition, expenditures may be reduced through the avoidance of costs caused bydelays. Such costs often occur due to the lapse of time between the institution ofproceedings and a court decision - time that the participating parties cannot use formore constructive purposes.CM procedures reduce the tax burden of maintaining an inflated judicial structure,because they help avoid unnecessary court cases and thus lead to more economical

use of public resources.And finally, participants in CM procedures report that even in cases in which noagreement was reached, the time and money for bringing the matter to court would


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have been necessary in any case, and that the attempted CM procedure still madesense because it led to better understanding between the opposing sides. The CMprocedure narrowed the range of judicially relevant points of disagreement and therebyshortened the court proceeding, making it cheaper for all concerned.

2.4 ...and the conditions they require

In spite of the many advantages of CM procedures, they must not be seen as a panaceafor every dispute. CM procedures are always open-ended processes, and will only lead tosuccess if a series of conditions are met. Particularly the conflict analysis at the start ofthe procedure (v. Section 2.6.2) provides for an examination of these conditions. Thefollowing prerequisites may be individually specified:

rStakeholders are identified and prepared to participate: At the start, potentialparticipants must be identifiable and basically prepared to take part in the CM process.

rHigh priority for all participants: The resolution of the dispute must be a high priorityfor all stakeholders. This is often not the case when there are major powerimbalances7

and/or where interests are weighted from different points of view, e.g.,

between administration and an NGO.

rStakeholders depend on one another: The participants will only engage in a CMprocedure if the satisfaction of their specific interests depends on the outcome, e.g.,when the awarding of a timber concession by a Forestry Ministry depends on the co-signature of the Ministry of Environment. Dependency exists, too, when one actor hasat least enough power to obstruct or to delay the project of another actor (e.g.,environmental NGO).

rAll stakeholders expect advantages from CM procedures: A further prerequisite isthat the actors dont perceive a (subjectively) better alternative to a negotiatedagreement, that is, no more favorable BATNA (BestAlternativeTo aNegotiatedAgreement). As long as participating actors are convinced that they are more likely toget what they want by other means, e.g., through a court decision, no CM procedurewill take place.

rThe conflict must be subject to a compromise solution: The conflict or itscomponents must be negotiable. If there is no room for compromise, all mediationprocedures turn out to be inappropriate - which is often the case in terms of pure valueconflicts: e.g., nuclear power, yes or no?.

rDecision-making authority of participants: The participants in a CM procedure mustbe assured as individuals or as delegates of interested groups and institutions thatthey are authorized to make decisions within the framework allowed for negotiation.

rRelinquishing of decision-making sovereignty: There must be a readiness, inparticular on the side of officialdom, to agree to an open-ended process and therebypartially to relinquish decision-making authority.

rFrame conditions(e.g., public opinion) favor a negotiated settlement.

rFinancingis assured.

2.5 Conflict management (CM) procedures

7 See also Section 2.7 on the topic of power and balance of power.


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The conflict resolution procedures used in the USA may be distinguished in regard to thedegree of intervention of a third party. 8The following chart shows the arrangement of theprocedure on a continuum:

Box 3 Copyright CDR Associates

CONTINUUM OF ALTERNATIVE DISPUTE RESOLUTION PROCEDURES

INCREASING INFLUENCE/POWER OF A THIRD PARTY

COOPERATIVEDECISION-

MAKING

THIRD PARTY ASSISTANCE WITH NEGOTIATIONSOR COOPERATIVE PROBLEM SOLVING

THIRD PARTYDECISION-MAKING

Parties areunassisted

Relationship-

building

assistance

Proceduralassistance

Substantiveassistance

Advisory,non-blindingassistance

Bindingassistance

Informationexchange

Cooperativeproblem-solving

Negotiation

Consulting

Team-building

Conciliation

Coaching/process-consultation

Training

Facilitation

Mediation

Technicaladvisory boards

Evaluation

Fact-finding

Mini-Trial

Advisorymediation

Settlement-conference

Non-bindingarbitration

Bindingarbitration

Mediation-arbitration

Mediation, thenarbitration

Disputes panels

Every communication within a dispute has either substantive or procedural elements. Veryoften, the manner in which we communicate with one another determines how or even

whether or not our opponent takes in the content of what we say. A central premise of allCM procedures is that by means of separating the negotiation process from thenegotiation content or substance the discussion proceeds better and common groundmay be found. For this separation of process and content/substance, impartial thirdparties are necessary who - to differing degrees - become responsible for the negotiatingprocess.

Mediation, which is often central to CM procedures, is one of the CM methods thatemploys a third party to support a negotiation process. Such support is often soughtwhen: the parties to the conflict do not know each other or potential adversaries have notyet been identified; there is no forum for negotiation; none of the participating parties feels

called upon to convene negotiations; the relationships among the participants are socharged that discussion appears impossible; the manner of negotiation has not yet beendetermined; or negotiations have reached a stalemate and the parties are seekingprocedural support in order to overcome it. Assistance at this level of intervention alwayshas as its goal the improvement of the joint effort at problem-solving or the negotiationprocess, but not assistance with substance. At the same time, the mediator should knowthe negotiated topic very well, so that s/he may at least follow the complex negotiations interms of their content. If need be, a mediator may also propose options to do with contentin order to encourage participants to expand the range of possible roads to a solution.

8 Although all procedures have their specific application possibilities, in Germany mediation isthe CM procedure that is best known and with which there is the greatest experience.Further discussion therefore focuses on this procedure. An explication of the remainingprocedural varieties is to be found in Annex 3.


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The mediator 9should be an outsider without any vested interest in a particular result.During the course of a mediation procedure s/he frequently works with individualparticipants or groups in order to scout out acceptable options, which s/he then developsinto proposals. No matter how much a given mediator may "steer" in an individual case,mediators have in common their role as catalyst to assist the participants in their searchfor their own solutions.

2.6 Building blocks and the course of a conflict management procedure

What is the actual course of a CM procedure? CM procedures are first of all not uniformin the sense that they all follow exact rules. It is exactly their non-formal nature that allowsthe (necessary) flexibility of such procedures. However, to conclude that every kind ofstructure is unnecessary would also be incorrect. Procedures for resolving conflicts needa minimal structure in the form of an "order of procedure and common understanding."10

If, therefore, in the following the essential steps of CM procedure with its various phasesis presented, taking mediation as an example - being the most familiar German CM

procedure - nevertheless, participants may basically tailor every CM procedure to suittheir own needs and previous experience.11For this, individual rules of order are oftenestablished (v. Annex 1).

Theoretically, four phases may be distinguished (v. box 4):

Box 4

2TQEGFWTCNUVGRUKPOGFKCVKQP

Initiation phase

Impetus from initiatorFinding a conflict mediator

Clarifying of financing

Preparatory phase

Preparing the conflict analysisSelecting negotiation participants

Laying out procedural rules of orderProcuring information

Negotiation phase

Eliciting interests (instead of positions)Creating a win-win situationTying up the negotiation package

Implementation phase

Announcement and signing of resultsCommitment of parties

Agreement on how to resolve future disputes

9 The terms "mediator," "facilitator," etc. are used in this context collectively, implying neither

a single individual nor a male or female personage.10 P. Wiedemann; C. Karger (no year).11 The presentation of the procedural steps is according to Ganer/Holznagel/Lahl,

1992, p. 34.


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2.6.1 Initiation phase

Before the mediation process begins, it must be initiated: Who wants the procedure totake place? How can a mediator be found? Who will finance the procedure? All threequestions are closely related:

r Impetus from initiator: Experience in the USA has shown that state authorities,environmental or conservation groups are the chief initiators of mediation processes. Asearch for a mediation process by outside persons or groups, who are not directlyinvolved in the conflict but are interested in how it turns out, is another frequent initialimpetus, as is active soliciting by professionals in the field. In cases where conflictresolution through mediation is legally prescribed by court decision - as ininstitutionalized labor disputes - the issue of initiation is a moot point. However, inGermany, and also in a number of developing countries, the initiative reverts primarilyto municipality and government agencies. Before the initiator of a CM procedurebegins the search for a mediator, a number of steps are necessary, including:

initial clarification that potential participants accept the procedure:Is the procedure already familiar to them? Is there (positive or negative) previousexperience? Are there basic reservations? Is there a readiness to participate?

coordination with other decision-makers:How do participating decision-makers (administrations) view the procedure, taking intoconsideration regulatory legislation? Which administrative branches are to take part orare able to hinder the procedure?

clarification of the mediators mandate:What is expected of the mediator? What exactly is s/he to do?

clarification of leeway for negotiation:Where is there some leeway? Which positions may be sacrificed if necessary?

rFinding a conflict mediator: The search for a suitable mediator is certainly moredifficult in Germany, where conflict resolution procedures are still in their infancy, thanin the USA, where CM procedures already have a 25-year tradition and where thereare now a number of professionals in the field. Experience has shown, however, thatthe push-and-pull effect tends to strengthen both sides: thus the demand for servicesin this area might also lead to a greater supply of professional mediators, who, again,through PR work, information, advertising and above all the multiplication of successfulmediation procedures, might stimulate greater demand. Finally, above all, CM

procedures are particularly significant where they are as yet quite unknown or only inthe trial stage.12When a conflict mediator has been (provisionally) found, s/he will firstclarify the assignment in greater detail. The compromise potential of the conflict, themandate as defined by the client(s), the amount of time allowed, his/her personalacceptability and the assurance of his/her (financial) independence13are all primaryconcerns. The lattermost refers not only to the mediators fee, but also to the financingof all activities necessary to the procedure. Only when all this is settled will it bepossible for mediator and client(s) to clarify the mediators ultimate role and to draw upa contract.

12 V. Section 3.13 Mediators with other sources of income, such as professors, have a high degree of

(financial) independence.


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rFinancing:The question of mediation financing, including the mediator him/herself, iscomplicated and relates to the mediators neutrality. Whereas at first independentfoundations predominated in the USA, today state authorities and industry oftenprovide financing. Environmental organizations and citizens groups also share costs.This cost-sharing has the additional advantage that the motive for consensus is sharedby all involved. If - as in the USA - CM procedures are prescribed as an instrument fornon-juridical resolution of conflicts, the financial arrangements are often integral tosuch instructions. In countries in which mediation is still in the introductory phase, theissue arises of whether the project contractor may provide financing, if mediation is tolose its experimental and exceptional character in the long run. Experience does notsupport the commonly expressed fear that the funding source might compromisemediator neutrality and could be used by the financing body as a subtle method ofleveraging acceptance. This fear underestimates the sensitivity of the participatingparties to the mediators requisite neutrality and impartiality. It is a mediators job tomake clear to the employer that there is no connection whatever between financingand a particular substantive position. Clearly, it would be very short-sighted of a

professional mediator to let him/herself be used in this way, since his/her professionalreputation is at stake.

2.6.2 Preparatory phase

In the preparatory phase the cornerstone is laid for successful conflict mediation, theessential components of which are conflict analysis, identification of the parties to theconflict or their delegates, and preparation of the first meeting. It is decisive that allinterested parties be represented and participate in the results of the negotiations. Thisalone ensures that the ensuing official decision, which is almost always necessary as well,will be oriented to the result of the negotiations and will be widely accepted.

rConflict analysis: The identification of the various interests will only be possible if aconflict analysis is undertaken. It is the task of the mediator to analyze the conflictsdimensions with great care. Analysis of the parties is part of this (which parties are themost important and who are their spokespersons?), as is the object of dispute (whatare the main objects of dispute?), and matters to do with the procedure itself (what dothe participants think of consensual conflict-resolution procedures?)14.

At this stage a confidence-building process takes place in which the mediator mustcredibly convince all participants in the procedure that s/he is competent on the basis ofhis/her personal qualifications - or that his/her firm has the necessary experience - andthat a mediation process is what is needed to resolve the conflict. Following thepreparatory process the mediator must see clearly that all participating adversaries havethe (obligatory) readiness to accept both him or her and the procedure itself as a meansto conflict resolution. The decisive factor for the acceptance of the mediator by theconflicting parties is certainly the relation of trust between them.

14 On the methodological procedure for conflict analysis v. Carpenter, Kennedy, 1988, p. 91. Acomplete overview of all questions to be addressed in this phase is to be found in Annex 4.


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rSelection of participants: The selection of the actual participants takes placeaccording to what the conflict analysis reveals. This process depends on all interestsbeing represented. If necessary, certain interests will have to be combined in order toproduce the necessary operating conditions for a round of mediation.15It is difficult totake non-organized interests into account. In such cases representation within abroader context might be proposed, e.g., through churches, charitable organizations,or NGOs.16It is, however, essential that delegates be legitimate and that a true bondexist between them and the group or organization they represent. This type offeedback system is especially significant when participating groups represent a broadspectrum of interests, as is often the case with NGOs.

rProcedural rules of order: When participants for the procedure have beendetermined, the next step must be agreement on substance, duration and rules ofprocedure. The procedural rules of order are generally recorded in writing. 17At thisstage incentives should also promote a brisk conducting of the procedure. Setting ofexact dates for the duration of negotiations provides a clear framework for all involved

and increases readiness to participate, although, of course, in reality such a frameworkcan be no more than a goal. In the end, the CM procedure must be as open-ended interms of time as it is in other respects.

rCooperative fact-finding: A central prerequisite for the success of the negotiationsthat are now to take place is the correction of informational imbalances.18All parties tothe conflict must have equal access to necessary and available information, so that allmay be more or less equally informed. This requires an open-handed informationpolicy on the part of both the authorities and project contractors, who both have at thispoint an opportunity to display their goodwill. Further, it must become clear whatadditional information will be acquired and by whom, so that there is a sound basis for

negotiation.

2.6.3 Negotiation Phase

When the participants have been specified, the procedural rules of order defined, andinformational imbalances corrected, the actual negotiations may begin.

r Interests instead of positions: During talks preliminary to the conflict analysis, themediator has already defined the participants positions and the interests behind themin an "interests profile." It is now of great importance that the parties to the conflict

recognize the difference between "positions" and "interests."

15 The relation between the size and functionality of mediation rounds is disputed.Experienced mediators consider groups with more than 30 participants problematical,groups with 15 - 20 optimal.

16 Of particular significance in developing countries is the strengthening of the organizationalcapacity of marginalized groups (v. Section 3.1).

17 A sample of procedural rules of order is to be found in Annex 1.18 An example of the correction of such imbalances is to be found in Annex 2.


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Box 5

Conducting interest-based negotiations

The point of departure for all CM procedures is a serious endeavor to solve problems jointly. Theparticipants decide on a strategy for cooperative problem-solving based on their interests.Essentially, a participant may choose one of five strategies:

A competition strategy is chosen when one partys interests are so narrowly defined that onlyone solution can be satisfactory, a solution that is unacceptable to the adversary. Thus the oneside will make an effort to attain the best result for itself within a winner-loser framework. Thisstrategy includes judicial procedures.

The "choice" of the loser is perforce an adaptation strategy when there seems to be no chanceof gain within the winner-loser solution. Such a strategy is appropriate when the party hasnt thepower to assert its own interests.

The most unproductive procedure is conflict avoidance, which satisfies the interests of neitherparty. It is a strategy of non-decision, which often derives from uncertainty over the result of theconflict, from fear of defeat, or from unfamiliarity with CM procedures.

In cases where no other solution may be forced or accepted, traditional CM procedures dependon a compromise strategy. Negotiation takes place from the standpoint of opposing positions.

As opposed to this, the strategy of cooperative problem-solving assumes that the positionsof the conflicting parties are not identical with the interestsand needs to which the conflict mayultimately be traced. The position is the objective decided upon; this decision, however, isdetermined by an interest. In a conflict of this kind, the problem that requires solution is thendefined by interests, and these need not necessarily be so opposed as the positions of theparties make them appear at first glance. The strategy of cooperative problem-solving thusattempts to work out the basic needs and interestsof the adversaries in order to discover leewayfor alternatives and to be able to develop options for action. In this way, one may find a solutionthat considers the circumstances of all parties as broadly as possible (win-win solution) and maytherefore be accepted by all.

Issues raised in the course of negotiations must be examined to determine whetherfundamental interests or strategic-tactical positions are at stake. The mutual recognitionof legitimate interests engenders a readiness to put aside positions that arent absolutelynecessary to the realization of ones own interests. At this point at the latest it becomesclear why not every phase of negotiations should take place publicly, and the issues ofconfidentiality and answerability to the public must be clarified in advance. It must bepossible for the parties to the conflict, who usually represent group interests, to use whatleeway they can, free of external influence, and if need be to sacrifice individual positionsin the interests of an overall solution.

Thus when a local dispute arises over a waste incineration plant (WIP), the interests thathave led to the position "No WIP in our town!" must be analyzed. These may be, forexample, fear of toxic emissions, anticipated odors, an increase in industrial traffic, etc. Inthe further course of negotiations it then becomes a matter of discovering whether or notthe respective (justified) interests, may be satisfied through other means, such asimproved filters, noise-abatement measures or compensation.

rThewin-win situation: After the various interests have been revealed, the mediatorstask is to create a "win-win situation." Every participant should leave the negotiationsas a winner in that s/he can record successes in his/her interest. The simple decisionpattern "either-or" must yield to the working out of a variety of possible decisions,which is more than simply crossing out some of the original positions in order to

achieve one solution or to attain a tactical success. What is promoted is rather a broadconsensus that presupposes readiness to compromise and understanding for theinterests of the opponent. The acceptance of mediation procedures depends


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conclusively on the extent to which it is successful in developing new, creative options,which could never emerge during a juridical confrontation.

rThenegotiation package: Negotiation packages are the result of proposals andalternatives that have emerged through the expression of all interests represented.The components of such a negotiation package may extend far beyond the object of aformal administrative procedure: participants are free to use their imaginations.

Box 6

Negotiation package

For the example above of an waste incineration plant (WIP), components of a negotiation packagemight be, for example:

The city constructs a WIP with considerably reduced capacity. In return, the groups affected,together with the municipal waste disposal office, commit themselves to drawing up and trying outan integrated concept of waste avoidance. The construction of the extremely expensive by-passroad originally planned is no longer necessary because of reduced

industrial traffic to the WIP. Residents along the existing access road are given noise abatementbarriers, whose financing is taken on by the state government. In addition, the hours for access to

the WIP are restricted.

2.6.4 Implementation phase

Negotiation is only effective if in the end the negotiating parties implement what has beendecided. Setting up binding plans (Who does what? When? How? Where? With whatfunds/means?) and monitoring groups have both proved effective. Another tool forpromoting implementation is economic incentive (e.g., making funds available on the

condition that they be used in accord with the agreement) or sanctions in case of failure toimplement (e.g., application by an environmental authority of regulatory or punitivemeasures.)

rMediation and signing: As already explained, even during negotiation there must beintensive feedback between the participating delegates and the parties they represent.Following the achievement of agreement in the round of negotiations, the delegatesmust have time for final checking with the parties they represent. If given approval, theresults of an agreement may be finalized by signing.

rCommitment of the parties: In the ensuing implementation phase the parties to the

conflict commit themselves to the negotiated agreement - legally, if need be. There areno significant legal complications involved between project contractors and the groupsaffected, and this is in fact the usual procedure. There are, however, narrow limits to acontractual obligation or agreement on the side of the authorities, since suchadministrative decisions take place through a formal proceeding (see Box 7).Nevertheless, the decision-making of the administration may well take the results ofthe negotiation into account, viewing them as a supplement to - though not areplacement of - the official judgement. The administration is basically free to adoptmediation-supported negotiation as its own and to use it as a basis for a formalresolution. Especially in the case of conflict-laden decisions it may be very much in theauthorities interest to orient themselves to a solution for which a consensus hasalready been achieved.


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Box 7

Legal obligations of participants to the negotiated settlement

The success of a CM procedure depends on the extent to which implementation of the negotiated

settlement is binding. In most countries, however, legal barriers prevent in advance legal commit-ment by the administration.3 The possibility remains, however, that the administration may opt forde facto self-commitment to the negotiated settlement. Self-binding in advance commitment by anauthority is allowable with the proviso that it be justified by circumstances, that it be made inaccordance with official planning regulations, and that it be substantively beyond reproach in termsof judicious consideration at the time of the in advance commitment. This prerequisite of lawfulnessfor de facto self-commitment is also applicable when an authority participates in mediator-supportednegotiations and feels itself bound by the agreements reached during them.Aside from de facto self-commitment, there are other ways of achieving legal commitment by theremaining participants in negotiation:For instance, the administration may declare the results of negotiations affecting project contractorsto be binding and impose relevant standards. The project contractor may reciprocate by legallycontracting to fulfill the concessions it has made vis--vis the administration and other participants.

In the process it could make its own services dependent on a contractually-specified return service.Also possible is a contractual implementation of the negotiated results between project contractorand the negotiation participants who depend on the authority.In the USA negotiation processes have not for a long time been limited to exclusively informaladministrative procedures. They are increasingly and in various forms already built intoadministration procedure regulations.Thus in 1990 Congress passed the Administrative Dispute Resolution Act, which provides generallyapplicable regulations for using CM procedures. According to it, federal authorities have the right tointroduce a CM procedure whenever the parties affected by an administrative decision agree toone.Since the beginning of the 1980s, in some states of the USA, negotiations are a required part of theformal administrative procedure for constructing toxic waste disposal plants.The Environmental Protection Agency (EPA) uses mediator-supported negotiation processes to

generate administrative regulations and laws. These "Regulatory Negotiations" became necessarywhen more than 80% of the administrative regulations enacted by the EPA were disputed in court,thus considerably delaying or even preventing their application.

rAgreements for the resolution of future disputes: In order not to waste participantstime and money if problems arise later on, mechanisms for the resolution of futureconflicts should be built into the framework of the negotiations. In practice, however,the possibility exists that individual persons or groups may not feel bound by thenegotiated settlement. Any parties that are authorized to sue and have not as a resultof the negotiations formally rejected recourse to law may resort to judicial review. Forthis reason the importance of comprehensive representation of all interests and ofconstant feedback during the negotiating process cannot be overestimated.

2.7 Evaluation of CM procedures by authorities, project4 contractors and otherparticipants

In order to evaluate CM procedures as tools for conflict management, a measure forsuccess is needed and may be found on various levels. Clearly, a CM procedure hasbeen successful when it has led to a consensual negotiated settlement. Theimplementation of agreements is another measure of success. In both cases, one can

3 V.B. Holznagel, 1990, p. 213 f.4 What is meant by "projects" is not only new projects on the part of industry / business or the

state which might result in conflicts, but also those that are introduced to already existingconflict situations.


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only speak of success when all participants rate the outcome better or more time- andmoney-saving than other forms of conflict management (such as court decisions).But negotiations results and their implementation as measures of success do not fullytake the use of the CM procedure into account, and the participants actually reap furtherbenefits that should be included in any evaluation of CM procedures. Even when it wasnot possible to reach consensus, the participants may have acquired useful experience:the procedures open communication process may have shed light on the positions,interests and motivations of other actors. These in turn clarify the individual position ofeach participant. What are the limits to and possibilities for negotiation with others? Whatobstacles are insuperable? Further negotiation then becomes more reasonable. Theeffects on the future relations of the partners to the conflict should also be brought intothe balance. Besides all this, a CM procedure may also be the start of a learning processfor all participants, which may lead in turn to strengthening a sense of responsibility inconflict-charged situations: compared to "alternative" CM procedures, court casesconstitute a typical hierarchical form of conflict resolution, since the resolution mechanismin such cases is the decision on "who is right," and ascribes to the court a higherinstance. In CM procedures on the contrary, the participants attempt to attain a

compromise acceptable to all. CM procedures may thus contribute ultimately to a changein the political culture.

From the perspective of the participants - in this case authorities, project contractors, andthose affected (individuals, citizens groups, etc.) - CM procedures are variouslyevaluated, as might be expected:

rAuthorities: CM procedures may lead to a limiting of the decision-making powers ofauthorities and are therefore initially approached with caution. In CM procedures tied toformal procedures like the granting of permits, uncertainty arises from the fact that theydepart from the strictly formalized course of official decision-making. Authorities mustalways consider the possibility that their decisions will be judicially reviewed and must

meet legal requirements. The object of the review is then, additionally, to what extentprocedural regulations were followed. However, from the official viewpoint, there are anumber of weighty arguments for using CM procedures: the usual informal preliminarynegotiations with the respective project contractors or applicants for permits arereplaced by the newer preliminary negotiations involving more participants. By takinginto consideration the various interests of the participants, the decision base isimproved in the sense of an overall planning result. The administration, often underpressure from both applicants for permits and permit opponents, can better realize itsrole as impartial guardian of all interests through broad discussion of planning deficits

and project effects.5The CM procedure, originally viewed as an additional burden,may actually lead to a reduction of work and a further guarantee of the formal planning

and permit procedure, since the latter gleans the results of the negotiation process andthe probability of long drawn-out court proceedings afterward is reduced. Finally, for anauthority, certainly the increase of legitimacy and acceptance of its decisions is adecisive argument for using CM procedures.

rProject contractors: The project contractor's reservations vis--vis negotiations areprimarily that they take time and money and must be made to "pay." Experienceshows, however, that applicants for permits often initiate negotiation processes, whichpromise greater chances for the actual realization of their projects and a greaterdegree of acceptance among the population. This, however, assumes in advance thatproject contractors enter fully into the negotiation process and on its own terms; that is,

5 This is naturally not the case when the project contractor and the permit-granting authorityare one and the same, e.g., in the case of traffic route planning.


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that they are ready to make concessions, and are not confusing CM procedures withsimple methods of gaining acceptance.


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rThose affected: Mistrust of voluntary negotiation processes is greatest among those

potentially affected. 6Their skepticism is based on the unequal power among thevarious participants, reflected in their unequal financial leverage, informationimbalances and different legal positions. The following basic conditions are thereforeformulated for the participation of individuals or representatives of citizens groups in

CM procedures:7

publication of all information

equal participation of those affected

capability and readiness to share definition and decision-making with those affected

correction of information imbalances readiness to compromise

To even out existing power imbalances, CM procedures prescribe rules that ensure theaccess to information and technical support that all participants need. Comprehensiveinformation is the deciding factor in effectively coming to grips with conflict. The

information gained in the process may also serve as an incentive for participation in theprocedure. Besides, CM procedures may be designed in numerous different ways, someof which may lead to the raising of environmental standards.

However, often very early on, potentially affected parties have set their minds against aproject, and this stands in the way of participation. Participation in a CM procedure means

taking a first step away from "no-option" to "conditional acceptance."8 This strategicsituation - often difficult for the groups affected - requires in individual cases carefulevaluation and weighing of the chances and limitations of the CM procedure. What mustabove all be clarified is what realistic alternatives there may be to participation in the CMprocedure.

Box 8What does "power" mean?

"Power means the ability within a social relationship asserting ones own will, regardless ofresistance and regardless of the nature of the occasion." Based on Max Webers definition, theroles appear at first sight to be clearly divided: on the one side, the strong state, collaborating withindustry, multinationals, etc.; on the other side, the weak, powerless individual, who must humblysubmit to the will of the powerful.But reality is different, as, for example, the "Brent Spar"-conflict between Greenpeace and Shell -David and Goliath - showed. Turnover, wealth, connections and influence are the cards in onepartys hand; in the others, the mobilization of public opinion through the media and with it controland pressure. To these, boycotts and the threat of court actions may be added: in other words,generally making life difficult for the other side. Project contractors indeed avoid public confron-

tation and monitoring but are at the same time interested in a "clean" image. The threat andinfluence potential of one party - i.e., the adroit use of this dilemma - creates a general incentive forthe other parties to negotiate. The balance of power is put in a different light and is leveled out. In

both industrialized and developing countries, NGOs9have evolved into effective opponents ofestablished power cartels and are considered negotiation - and to some degree cooperation -partners to be taken seriously. Experience shows that in developing countries, NGOs support theinterests of marginalized groups very effectively. What is decisive for NGO effectiveness is,however, a minimum of bureaucracy and the free flow of information.

6 At least in Germany, where until now relatively few procedures have taken place.7 koinstitut Darmstadt, according to Ganer, Holznagel, Lahl, loc. cit. p. 85 f.8 If the CM procedure is only in a very early (planning) stage, a "no-option" is not to be

excluded.


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2.8 The content of negotiated settlements

It is sometimes argued that negotiated agreements in the environmental sector treat theenvironment as goods to be bartered, and that participating parties may reach anagreement at the expense of environmental protection. Such a position reflects theexperience that environmental viewpoints often conflict with economic interests and otherpolitical objectives and are not given their just due. It must not be overlooked, however,that environmental legislation and legally defensible environmental positions can never besubject to negotiations. No one negotiates over something which is his or her right in anycase. What is negotiable is only the leeway for making decisions or legally non-assailablecompensations. These also make it possible to "put in a plug" for the interests ofenvironmental protection.

As already suggested above, one advantage of CM procedures is the range of possiblenegotiation results, the variety and breadth of which may not be expected fromadministrative resolutions. If CM procedures are thus to be more broadly implementedand become more widespread, this flexibility of informal negotiations as opposed to

formal administrative procedures must be made available to all participants. The objectiveof CM procedures is an optimal balancing of interests: that is, at core, a win-win situation.

The following examples present possible subjects for negotiated settlements: 10

Avoidance measures: At a relatively early planning stage, the necessity for anddimensions of a planned project may be discussed in the framework of a CM procedure.Invasions of the natural environment or landscape and possible disadvantages to personsaffected may thus be avoided or minimized. Thus a waste-avoidance concept, forinstance, might make the planned construction of a community-operated wasteincineration plant within the city limits unnecessary. Other conceivable results of anegotiation process might be reduction of plant size or the design of a regional waste

disposal network.

Protection measures: The particular object of negotiated settlements may beagreements that oblige project contractors to undertake measures that go beyond legalrequirements. These might be for example:

precautionary measures beyond the current state of technology

obligations to monitor and institute improvements at certain intervals, regardless ofofficial requirements

permission to review confidential records

inspection permission for experts

broadening of the obligation to provide information participation of affected groups in monitoring and implementing the agreement

negotiated

Equalization and substitution measures: Equalization measures are also conceivablebeyond the scope of the project planned. Such measures, which in Germany have untilnow been taken only in regard to environmental protection legislation, could also beagreed in other areas of conflict. For example:

9

NGO is used here as a collective term for the most diverse non-governmentalorganizations, such as environmental groups, legal aid groups, nature preservationassociations, citizens intitiatives, grass-roots groups, etc.

10 The ensuing remarks are taken from Ganer/Holznagel/Lahl, op. cit. pp. 57-62.


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for the sake of water conservation, an obligation to help improve or expand a sewagepurification plant that the project contractor may use, too

assumption of costs for passive noise prevention measures to reduce noise pollutioncaused by delivery traffic within the broader surrounding area

promotion of research to protect the health of residents in the immediate vicinity of the

project, e.g., within the framework of environmental liability discussions, obligatoryfinancing of long-term research to provide sufficient data

Compensatory measures, particularly financial compensation: Finally,counterbalance measures such as leisure facilities may be negotiated to compensate forproperty devaluation in the immediate vicinity of a planned project. The characteristic ofsuch compensation is that it does not prevent or lessen disadvantages caused by theproject, but balances out such anticipated disadvantages through advantages of anotherkind. Such measures may be relevant where an optimal project concept already exists,one which takes into account all environmental and social impact criteria. Compensationthus does not replace avoidance, protection, equalization and substitution measures. Itcan only be used where environmental protection alone is not enough to compensate for

a disadvantage that must be accepted for the sake of the general good. Thus, forexample, within the scope of a CM procedure in Indonesia, it was agreed that anindustrial operation - in addition to meeting criteria for the reduction of pollution - mustalso contribute financially to the development of the community affected.

2.9 Qualifications of a mediator

A mediators qualifications were once summarized as follows:11

the patience of Job

an Englishmans stalwartness an Irish sense of humor

a marathon runners endurance

an American halfbacks ability to dodge

Machiavellis shrewdness

a psychiatrists knowledge of human nature the skin of a rhinoceros the wisdom of Solomon

and, more seriously,

integrity and impartiality confidence in free expression (as opposed to the ordered communication structures of

hierarchies)

belief in the human potential for development the capability to distinguish what is desirable from what is do-able sufficient personal motivation and confidence and readiness for self-examination know-how on conducting negotiations and faith in collective decision-making

The qualifications cited are mostly personal qualifications that can hardly be acquired orlearned as techniques. In addition there are, however, a number of helpful skills that mayindeed be learned: techniques for conducting discussions, communication andmoderation skills, rhetoric and specific procedural know-how that relates to the mediation

process. Some requirements lie on the border between abilities to be acquired and

11 Simkin 1971, quoted by Fietkau, 1991.


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"consulting firms" in the USA - the list may be as long as one likes. The spectrum ofqualifications goes from "supposed" or "rumored" qualities to pure formal qualifications orcombinations of both.

The necessity, for example in the USA, of the mediators impartiality and neutrality doesnot mean that a mediator may not have his or her own views about the subject and theoutcome of the conflict. No one is fully disinterested. Disinterest and neutrality mean inthis case that the mediator separates his/her own ideas about the possible outcome of theconflict from the wishes and ideas of the parties to the conflict and concentrates onhelping them make their own decisions, without favoring either party unduly. The ultimatecriterion in the choice of a mediator is whether or not s/he is accepted by all parties to theconflict.

The qualifications listed above include no information whatever about substantiveprofessional qualifications. Mediators will probably never be in a position to be expert in alldetails. This is true above all of environmental conflicts which are not site-related, butrather of a political nature. Specialized knowledge is certainly necessary under certain

circumstances, but the conflict mediator him/herself need not be the expert.


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jointly or singly. The beginnings of a civil society are found in nearly all countries, evenin those whose centralist structures give good reasons for supposing that power isstrongly imposed from above. So it is no coincidence that it is precisely the USA, withits strong civil society characterized by flat hierarchies and narrowly-confinedimbalances of power, that has been in the vanguard of those developing and applyingCM procedures.

The non-environment-specific conditions outlined above should be taken as optimalprerequisites. Each individual case must be probed to determine to what extent conditionsallow enough scope to apply CM procedures or how this scope can be expanded. In somecases even the framework conditions themselves could be the object of the intendedchange processes.

The application of CM procedures, in addition to its purely instrumental function, has anintrinsic value as a social learning process tending to strengthen democratization andencourage citizen participation. CM procedures were developed in the USA with theexpress goal of overcoming perceived flaws in representative democracy.

Environmental policy decision-making around the world is dominated by administrativeprocedures, essentially characterized by a top-down approach, with limited and strictlyregulated participation. This is not surprising, since, on the one hand, participation means

loss of power12, but, on the other, it is in this way that the requirements of the rule of law,such as the need for unified administrative action and safeguarding the general welfare,must also be taken into account. Where the capacity to carry out environmental policystagnates or demonstrably lessens, however, whether at the decision-making orimplementation level, alternatives should be considered. Meriting attention at this point, inaddition to the already-mentioned context, are environment-specific conditions whichinfluence the capacity for action.

rFragmenting of responsibilities:The fragmenting of responsibilities13 relevant toenvironmental policy narrows by many times the maneuvering room environmentalinstitutions have and has substantial consequences for the areas in which CMprocedures can be applied, if the institutionalized introduction and use of theseprocedures infringes on the competencies of environment ministries, which is generallythe case. But a reform of the entire range of environmental policy instrumentsbecomes increasingly possible as environmental policy itself is perceived as a cross-sectoral issue and a common task, and is firmly established on a broad basis ingovernment structures and in public debate.

rStatus of environmental institutions:Environmental ministries, in developing as in

industrial countries, are - compared to the classic ministries - relatively weak actors.The political weight of state environmental institutions and their collaboration at theministerial level is, however, advantageous for the introduction of new environmentalpolicy instruments. Therefore allies must be sought and strategic alliances built.Potential allies aside from ministries include, first of all, environmental NGOs, interestgroups, labor unions, law faculties and the media.In addition to a broad public debate, an important precondition is that the problems putindividual participants under intense pressure, and that they perceive that theseproblems cannot be resolved in the context of the existing range of instruments.

12 Often equated with a weakening of governmental structures.13 The fear among government bodies of losing authority (equated to power loss) to the civil

society, has its equivalent on the inter-ministerial level.


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Box 10

Conflict management in Indonesia

The environment ministrys interest in applying CM procedures results from the difficulties met bythis relatively new institution in measuring up to its tasks and in asserting environmental interestsagainst the opposition of politically stronger groups and institutions. The structural weakness of the

ministry - it has no project budget of its own and no regional or local structure, and so depends onthe cooperation of other ministries to meet environmental needs successfully - made clear thenecessity of employing new policy instruments.

Building on traditional conflict resolution procedures when possible is also advantageous.The consensus orientation of many cultures facilitates application of CM procedures.

Box 11

Sociocultural framework conditions in Indonesia

Sociocultural conditions in Indonesia favor a broad application of CM procedures. The dominantstate ideology, in which the search for consensus and harmony is firmly anchored, has adopted aconflict resolution procedure rooted deep in Indonesian culture (mushawara), which seeks

consensus among conflicting parties, and can therefore serve as a reference system. Historically,mushawaratook place in the rigidly structured Indonesian society only between conflicting parties ofthe same rank. Disputes of greater complexity were and are resolved by first seeking a solution ona hierarchical level, and then transferring it to the next level up through representatives in anadvisory process. These mechanisms are still referred to in current environmental CM procedures.Although environmental conflicts bring into confrontation groups/persons of very different ranks, thecommon cultural basis provides a favorable precondition.

3.2 Institutional framework

The decision to introduce and carry out CM procedures means that participating actors

must be prepared to expend considerable time and effort to reach agreement. It isadvantageous here if the agreement process is coordinated from a central position, suchas the environment ministry. This is especially important if the ministry primarily hasplanning and coordinating functions, and depends on other bodies for implementation andmonitoring.

Generally the possibility and desirability should be examined of distributing responsibilitiesamong regional administrative bodies at various levels, such as states, provinces orcommunities. The horizontal and vertical distribution of competencies suggests itself in,for example, site-specific conflicts, which are usually confined to geographically definableareas. If the use of CM procedures is planned on all levels, clear lines of responsibilitymust be drawn. Experience shows that in many countries it is helpful to have overallenvironmental legislation that establishes priorities, competencies, procedures andparticipative possibilities, and much else as well. In this connection, it appears worthwhileto establish on the provincial level clearing houses which can find and pass on or furnishexpertise, document pilot cases and answer general inquiries. Whether a governmentbody should assume such a function must be decided in each individual case. Since CMprocedures include procedural options, their recognition and use is closely tied to an

appropriate information policy.14 Their introduction requires therefore a communicationand information policy, which reaches all relevant actors and involves them in thediscussion process.

14 In contrast to, for instance, the use of marked-based-instruments, which are "demand-oriented," and which the parties concerned can evade only at an economic loss, conflictmanagement procedures are more "supply-oriented" instruments, whose use is conditionalon the knowledge that they exist.


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Box 12

Communication policy in Benin

An example from Benin shows how important communication policy is. New environmentallegislation there provides, under certain preconditions, for public participation in environmentally-relevant projects. Exercising this right, with in some cases far-reaching consequences,

presupposes that its existence be known at all administrative levels and by its potential users. Onlythen can such a right be exercised. For Benin, this requires a comprehensive, actively-pursuedcommunication policy, including, possibly, even providing the means for people to take thisparticular opportunity, in order to forestall the impression that the legally-provided right of

participation is only for the sake of appearances - to conciliate

environmental conflict management. an environmental policy i

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